Issue or relevant
point(s): Does Section 512(h), under statutory construction precedence, provide
grounds to serve a DMCA subpoena to a service provider operating under safe
harbor § 512(a) functionality in order to obtain infringer identification
information?

Ruling:The Court denied the RIAA’s subpoena request,
and granted both Does Motion to Quash

Background

The RIAA sought DMCA subpoenas for serving upon the
University of North Carolina at Chapel Hill (UNC) and North Carolina State
University (NCST).UNC and NCST were
both ISP’s in the context of its function of providing internet access to
students, in this case “Hulk” (John Doe, student at UNC) and “CadillacMan” (Jane
Doe, student at NCST).

The DMCA subpoena request(s) by the RIAA identified the
students as using the ISP’s to download (or otherwise share) with other users a
number of computer files containing copyrighted songs.In order to determine what further action to
undertake, the RIAA sought identification information in the form of names,
addresses, phone numbers, and email addresses.

Initially, the clerk of the Middle District NC issued the subpoenas,
and both UNC and NCST appeared willing to comply.However, upon notification to both Does, each
subsequently filed a Motion to Quash.In
addition, once the Verizon opinion issued, both UNC and NCST also filed Motions
to Quash[1]

The Court first gave an initial summary discussion as to the
DMCA and its provisions (e.g., safe harbors, monetary relief,
notice-and-takedown, DMCA subpoena, etc.) as well as the ‘balance’ effort it
sought to provide.The Court noted that
evolving technology, namely the ‘Peer-to-Peer’ systems, now allows users to
access each other’s computers, instead of accessing a “bulletin board” and the
like.Thus, no ‘website’ is involved,
and only internet access is required.

In order for a claimant to pursue an alleged infringer, it
must be able to identify the infringer – this can be done by obtaining the
internet protocol (“IP”) address associated with a respective ISP user.And only the ISP can provide this information,
thus resulting in the RIAA’s DMCA subpoena request.

Analysis Summary

Although the Motions raised a number of points, the Court
mainly focused on the statutory construction of § 512(h) as to its
applicability of an ISP providing functionality falling under the § 512(a) safe
harbor.

The Court provided:

“In determining whether the subpoenas in this
case were authorized by the DMCA, the Court begins by looking at the language
of the statute itself in order to determine whether its meaning is plain and
unambiguous. Holland v. Big River Minerals Corp., 181 F.3d 597, 603 (4th
Cir.1999), cert, denied, 528 U.S. 1117, 120 S.Ct. 936, 145 L.Ed.2d 814 (2000).

In making this determination, the Court
should be guided by the context surrounding the language in question, along
with the broader context of the statute as a whole. Id.If, after this review,
the Court finds the statutory language in question to be ambiguous, it may look
to the legislative history to determine Congressional intent and, if that is
not apparent, then it may apply the traditional tools of statutory
construction. Id.”

The Court recognized, much akin to Verizon, that in order for the clerk to issue a DMCA subpoena, a
requestor must submit a notification in compliance with 17 U.S.C. § 512(c)(3)(A),
which further requires ‘information
reasonably sufficient to permit the service provider to locate the material’.

In this particular case, as in any ‘conduit’ case, the ISP’s
merely provides transitory digital communication via internet access – thus there
is no ‘stored material’ to be removed or access disabled.As a result, it necessarily followed that the
RIAA could not comply with the requirements of § 512(h).

The Court was unpersuaded by the RIAA’s construction
argument, and further noted:

“Two courts of appeals have concluded the
subpoena provisions do not apply to Section 512(a) service providers. The District of Columbia was first. Verizon,
351 F.3d 1229. It held that Section
512(h) does not apply to Section 512(a) service providers, but rather “is
structurally linked to the storage functions of an ISP and not to its
transmission functions, such as those listed in § 512(a).” Id. at 1237.

Having concluded that the explicit
provisions of Section 512(h) did not authorize the issuance of a subpoena to
mere transmitting service providers, the D.C. Circuit found no need to examine
legislative history. In any event, it
found that history showed that P2P data exchange was not contemplated at the
time the statute was written and, therefore, the court concluded that it would
not be proper for a court to rewrite the DMCA in order to have it “fit a new
and unforeseen internet architecture.”” Id. at 1238.

The Court viewed its construction of 512(h) supported by tenets
of statutory construction precedent.

In looking at the statute's core objectives, the District of
Columbia Court necessarily found the objective of the DMCA subpoena provisions
concerned the storage functions of an ISP and not the transmission functions.
The RIAA would argue that this scope is too narrow and that the Court should
look to the larger concern of copyright violations arising as a result of
internet activity.

The Court felt that the RIAA’s construction would result in a
leap in the current duty of the Clerk, namely, ensure the DMCA notification
complies with § 512(c)(3)(A).If a DMCA
notification could be used for §
512(a) ISP’s, it would require the Clerk to go beyond the mere ministerial duty
required of it in order to ensure said notification was in compliance with the
requirements of (c)(3)(A).

Instead, the Court believed it was clear the crafters of §
512(h), without an express indication otherwise, intended the DMCA subpoena
process to be constrained to service providers operating under § 512(c) safe
harbor functionality.[2]

The Court next looked specifically at an argument raised by
Jane Doe pertaining to a question of venue.Specifically, Jane Doe argued venue for the subpoena was controlled by
28 U.S.C. § 1391, whereas the RIAA argued 1391 applied to civil actions – and that
§ 512(h) provides the right to obtain a subpoena in any district court.

The Court reiterated it’s constitutional concerns with §
512(h), as well as the overly broad construction suggested by the RIAA.The Court elaborated:

“With the advent of federal nationwide service of process
statutes has come a greater recognition that an assertion of jurisdiction over
persons on that basis must comport with the Due Process Clause of the Fifth
Amendment. ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 626 (4th
Cir.1997), cert. denied, 523 U.S.
1048, 118 S.Ct. 1364, 140 L.Ed.2d 513 (1998); In re Automotive Refinishing Paint Antitrust Litigation, 358 F.3d
288, 298 (3d Cir.2004). Some courts
would find that due process is satisfied so long as the individual has minimum
contacts with any place within the United States, but others would require
more. Medical Mut. of Ohio v. deSoto, 245 F.3d 561, 568 n. 4 (6th
Cir.2001)(collecting cases). The Fourth
Circuit, in particular, finds that due process protects an individual's liberty
interests against unfair burden and inconvenience. It has noted that federal venue statutes provide
the primary protection against undue burden and that it likely would require an
unusual case for a constitutional violation to arise. ESAB
Group, 126 F.3d at 627; see also Peay
v. BellSouth Medical Assistance Plan, 205 F.3d 1206, 1212 (10th Cir.2000). However, in the present situation, because no
case has been filed, there are no fallback venue statutes to ease the burden.”

….

To start, one must distinguish nationwide service of process
from both jurisdiction and venue. Id. See
Willingway Hosp. Inc. v. Blue Cross & Blue Shield of Ohio, 870 F.Supp.
1102 (S.D.Ga.1994). The fact that a
party may be served at any place in the country does not mean that every court
has jurisdiction over the matter and venue is proper everywhere. A court should take care to keep these
distinctions in mind and be careful to note whether Congress specifically was
authorizing jurisdiction. Willingway, 870 F.Supp. at 1107-1108. Finally, "the subpoena power of a court
cannot be more extensive than its jurisdiction." 487 U.S. 72, 74, 108
S.Ct. 2268, 101 L.Ed.2d 69 U.S. Catholic
Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76, 108
S.Ct. 2268, 101 L.Ed.2d 69 (1988).

In the instant case, Section 512(h) says that the copyright
owner or agent can seek a subpoena from any district court, but does not say
that every district court has jurisdiction to issue a subpoena compelling
action from persons outside of the district. Without an explicit indication from Congress
that such was the intention of the language, the Court will not infer it. The RIAA has pointed to nothing to convince
the Court otherwise. Because of the
potential for misuse, it is unlikely Congress would have granted such sweeping
jurisdiction without discussion. Allowing
private parties to use the power of federal courts to gather private
information ex parte in absence of litigation or contemplated litigation
(contrast Fed.R.Civ.P. 27) is an extraordinary event in itself without
construing Section 512(h) as being a nationwide venue and jurisdiction statute.”

The Court did not come to any definitive conclusion as to
the venue/jurisdiction issue associated with § 512(h).Instead it ultimately believed any DMCA
subpoena must be issued and served within the same district.Here, the RIAA had the subpoena issued in the
Middle District, but served in the Eastern District (where NCST is located), hence
the subpoena was quashed.

Conclusion

The Court agreed with other circuits that constructed §
512(h) as being inapplicable to ISP’s operating under § 512(a) safe harbor
functionality.In its construction, it
relied on the fact that the legislative history indicates the clerk function is
intended to be ministerial, and any construction of § 512(h) that increases the
complexity of the clerk’s function is unsupported.

The Court then contradicts itself by inferring § 512(h) must invoke
a venue/jurisdiction assessment (requiring the clerk to perform a beyond-ministerial
function).

It is worth noting this case was decided pre-2013 amendments to Rule 45 (which, among another things, removed the 100 mile limitation of 45(b)(2)). Today, this part of the Rule states: "A subpoena may be served at any place within the United States."